The King v Connor McPhee - [2023] NZHC 1186

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-085-384

[2023] NZHC 1186

THE KING

v

CONNOR McPHEE

On the Papers

Counsel:

S A H Bishop and K L Kensington for the Crown P H Surridge for Mr M

Judgment:

17 May 2023

JUDGMENT OF GWYN J

(Name Suppression)

Introduction

[1] Connor McPhee was found not guilty of manslaughter1 by a jury in the Wellington High Court. Upon his acquittal, I continued the interim name suppression initially granted by Ellis J2 in the pre-trial stage. Mr McPhee has sought permanent name suppression on the ground of “extreme hardship”.3 Mr McPhee had earlier sought suppression on a second ground also — risk to his fair trial rights — but no longer relies on that ground. The Crown opposes the application.

1      Crimes Act 1961, ss 160(2)(a) and 171.
2      R v M [2021] NZHC 2201.
3      Criminal Procedure Act 2011, s 200(2)(a).

R v CONNOR McPHEE [2023] NZHC 1186 [17 May 2023]

Submissions

For the applicant

[2] Mr Surridge, counsel for the applicant, submits the Court should grant Mr McPhee permanent name suppression because the applicant’s mental health satisfies the extreme hardship ground under s 200(2)(a) of the Criminal Procedure Act 2011 (CPA).

[3] In support of his application, Mr McPhee has filed in evidence a report from his psychiatrist. The psychiatrist’s report notes Mr McPhee’s concern for his security as well as the security of his family. At the time of the victim’s death, the victim’s family had posted about the death on social media. The prospect of renewed publicity if Mr McPhee’s name enters the public domain concerns him. The psychiatrist suggests that Mr McPhee’s mental health would benefit from permanent name suppression.

[4] The report also notes Mr McPhee’s concern about his business interests if publicity of his name is allowed. Mr McPhee is self-employed and runs a business employing two or three staff. He worries that if it became widely known that he had faced a manslaughter charge, he would be less likely to be invited to tender for work, which would have a negative impact on his finances and his ability to supply his employees with work.

For the Crown

[5] Counsel for the Crown submits that the applicant has not established that publication of Mr McPhee’s name will cause him extreme hardship. Further, the Crown submits that even if Mr McPhee’s application passed the threshold stage of the assessment under s 200 of the CPA, the Court should not exercise its discretion to suppress the applicant’s name because the presumption of open justice is not displaced by the competing factors in this case. There is a legitimate public interest in reporting on a successful self-defence claim.

[6] The Crown submits that the medical evidence does not establish that the publication of Mr McPhee’s name will cause him extreme hardship. The psychiatrist’s report notes Mr McPhee has previously experienced difficulties with his mental health. As to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The King v Connor McPhee

Details

AGLC: The King v Connor McPhee [2023] NZHC 1186
Case: [2023] NZHC 1186
Decision Date: 17 May 2023

CaseChat Overview and Summary

Connor McPhee, acquitted of manslaughter in the Wellington High Court, has applied for permanent name suppression. The court had previously granted interim suppression, but the Crown opposes McPhee's application for permanent suppression. McPhee argues that suppression is warranted due to "extreme hardship" resulting from his mental health and potential negative repercussions for his business if his name is published. The Crown contends that McPhee has not demonstrated that publication will cause him extreme hardship and that the public interest in open justice outweighs the applicant's concerns.

The court examines whether the threshold for "extreme hardship" under section 200(2)(a) of the Criminal Procedure Act 2011 has been met, which requires a "real and appreciable possibility" of self-harm. The psychiatrist's report indicates McPhee's mental health has improved since the charges were laid, and he has implemented support mechanisms. The court finds that while publication may cause McPhee some embarrassment or discomfort, these consequences are typical of being involved in criminal proceedings and do not constitute "extreme hardship." The court also considers the risk of threats from the victim's family and the potential impact on McPhee's business, but concludes these factors do not meet the threshold for extreme hardship.

In the discretionary stage, the court balances the principle of open justice against the applicant's interests. Given the seriousness of the offence and the public interest in reporting on the trial process, the court finds that the facts of the case do not justify departing from the principle of open justice. Consequently, the court declines McPhee's application for permanent name suppression.

Orders